Berghütten GmbH Theodor-Heuss-Ring 38-42 D-63128 Dietzenbach Phone: +49 (60 74) 8 55 - 0 info@berghuetten-gmbh.de

General Terms and Conditions of Delivery and Payment
July 2000

1. Quotations and orders

(1) All of the seller´s quotations, the acceptance of orders as well as all deliveries and services take place exclusively on account of the following conditions. These conditions also apply to all future business transactions with the buyer. Any of the buyer´s terms and conditions of purchase is expressly opposed herewith.

(2) All agreements and orders, especially those made verbally and by telephone, are only binding if the seller has acknowledged them in writing. This also applies particularly to orders and agreements which are made with the seller´s representatives and employees.

(3) Our quotations are always provisional and subject to alteration. The quantities and weights that are carefully ascertained by us or our supplying factory apply exclusively.

2. Pricing

(1) If nothing else is agreed, then our prices are understood to be currently prevailing prices. If the cost factors alter between conclusion of the contract and delivery or after a partial delivery, then the seller reserves the right to accordingly adjust the price of the remaining quantity which is still outstanding.

(2) All of the state´s public charges and other fiscal charges, which will be newly introduced or increased after the quotation has been submitted and refer to the delivery´s procedures, the same object or to the raw materials which are required for its manufacture, will be charged to the customer, even when the subsequent shift of responsibility has not been prescribed by law already.

(3) If nothing else is agreed, then all of the prices are understood to be ex-works or ex-warehouse from the seller, as well as unpacked and uninsured.

3. Despatch and risk of loss

(1) All consignments travel at the buyer´s cost and risk until the moment of handover for further transport, irrespective of whether the goods are loaded postage unpaid or freight pre-paid.

(2) The despatch will ideally take place according to the seller´s experience; no warranty is undertaken for the packaging´s quality when the goods arrive at the place of destination or in the sea port.

(3) Complaints because of loading and packaging are excluded in the case that the goods are taken by German railways (Deutsche Bahn) or other transport companies without any objection.

4. Delivery

(1) Periods of delivery and dates of delivery are only approximate deadlines and they are not binding. The given dates for deliveries and services will be complied with by the seller as far as possible. The transporting time must not be included when calculating the time of delivery in any case. Delays that the seller cannot avoid despite taking the care that is reasonable according to the circumstances of the case, irrespective of whether they arose with the seller, his upstream suppliers or transporters, exempt him from complying with the given deadlines without liability for compensatory damages and they entitle him to withdraw from the contract entirely or partially.

(2) The period of delivery will be prolonged in the case of measures within the framework of industrial disputes as well as the onset of unforeseen hindrances which lie outside our influence (i.e., force majeure), insofar as such hindrances provably have a considerable influence on the completion or delivery of the delivery item. This rule also applies if these circumstances occur with subcontractors. We will not be responsible for the aforementioned circumstances either, whenever they arise during a delay that exists already. The beginning and end of such hindrances will be notified to the customer as soon as possible in important cases. The period of delivery will be complied with if the delivery item has left the factory before its expiry, or if the readiness for despatch has been notified.

(3) The contract will be adjusted reasonably, insofar as the aforementioned unforeseen events change the economic significance or the content of the service considerably, or if they affect our company considerably as well as in the case that they make it impossible to carry out subsequently. The right to withdraw from the contract entirely or partially is vested in us, insofar as we are not responsible for these events, economically. Claims for compensatory damages because of such a withdrawal do not exist. If we want to make use of the right of withdrawal, then it must be notified to the customer immediately after becoming aware of the event´s effect, namely even whenever a postponement of the date of delivery was agreed with the buyer first of all.

5. Payment

(1) Invoices are payable net within 30 days after the invoicing date. If the due date for payment is exceeded, then the seller is entitled to charge interest of 2% above the German Central Bank´s respective discount rate.

(2) Bills of exchange will only be accepted on account of express agreements and for the sake of fulfilment. Expenses arising from discounts, collection and other circumstances will be charged to the buyer. It is excluded to change cheques and bills of exchange.

(3) The buyer can only set off undisputed or legally binding debt claims or assert rights of retention. because of them. Every retention of paymentis excluded if the claim to retention is based on another contractual relationship.

6. Notification of defects and warranty

(1) Any arising defects must be notified to the seller immediately, or within one week at the latest after receipt of the goods at the place of destination, or, in the case of any latent defects, after their appearance has been notified in writing, subject to giving accurate information about the asserted individual defects. The buyer´s duty of investigation includes the entire delivery (i.e., consignment).

(2) Complaints can only be asserted before the delivered goods are prepared or processed. If the defect is not criticized in good time, then the delivery will have been carried out according to the contract.

(3) The seller is entitled at his discretion to either deliver replacements free of charge, or to take back the goods entirely or partially and refund the purchase price in the case of defects that have been properly, justifiably criticized. The buyer is entitled to reduce the reimbursement or, at his discretion, to demand that the contract is rescinded in the case that the replacement delivery is also defective in three cases as well as in the case that the assured quality is defective. The seller will only continue to be liable for the lack of assured quality, if the assurance is precisely intended to protect the buyer from the consequential damages arising from the defect(s).

(4) The prerequisite for complying with the buyer´s warranty claims is proper storage of the delivered goods. The seller must be given the opportunity of inspecting the criticized goods.

(5) The buyer is obligated to pay the invoice on the agreed due date for payment, irrespective of giving notifications of defects and safeguarding his warranty claims.

7. Liability

(1) The seller is only liable in the case of causing the damage deliberately or by gross negligence, or infringing a contractually essential duty, which arises from existing legal and contractual liability, (especially in the case of delay or default, contractual infringement, impossibility, incapacity, infringement of duties during contractual negotiations or unauthorized action). The seller´s liability in this case is also limited to the damage which was foreseeable for him.

8. Reservation of ownership

(1) The seller reserves ownership of all the goods that are delivered by him until the buyer has paid all debt claims, and future debt claims,arising from the business relationship. If deliveries are made on the basis of continuous invoicing, then the reservation of ownership serves to secure the balance.

(2) The buyer is entitled to dispose of the goods within the course of proper business. The buyer herewith assigns to the seller in advance all debt claims arising from reselling the goods which are subject to reservation of ownership. Claims for compensation against insurances or third parties, which arise from damage of the goods that are subject to the reservation of ownership, are also assigned to the seller herewith. If the goods that have been delivered by the seller are mixed or connected with other objects, then the buyer assigns his rights of ownership or co-ownership over the mixed object or new object to the seller simultaneously.

(3) If the value of the seller´s securities exceeds his debt claims by more than 20%, then he will release the excessive securities at his discretion.

(4) The assertion of the reservation of ownership does not apply as withdrawal from the contract. If the goods are taken back, irrespective of whatever reason, then the seller will be entitled to charge a lump sum of 15 % of the order´s value for his costs which are associated with the retrieval.

(5) The buyer is not allowed to mortgage the goods that are delivered subject to reservation of ownership or to assign them as security, for as long as he has not settled his total liabilities (i.e., accounts payable) with the seller. Furthermore, the buyer is obligated to notify the seller immediately about any seizure, opening of bankruptcy proceedings or other considerable legal events which can adversely affect the seller´s rights. In the case that payments are suspended or stopped, the goods must be set aside and kept at the seller´s disposal.

9. Creditworthiness

(1) The buyer´s creditworthiness is a prerequisite for accepting the orders.

(2) If this prerequisite is lacking after the contract has been concluded, then the seller can withdraw from the contract or demand immediate payment, namely, even whenever bills of exchange are given.

(3) The buyer is not considered to be creditworthy if he has not paid the amounts due for earlier deliveries despite receiving reminders, or if appropriate information has been submitted to the seller by a reputable bank or credit agency.

10. Duties of notification

(1) Insofar as the seller acts as a trader, his buyers do not have any claim to information about his source of supply. There is not any obligation for the seller to deliver from a factory in the case that the factory, which has been accepted by him for the order or is intended to be accepted on account of concluded contracts, is entitled to refuse the delivery entirely or partially according to its terms and conditions of sale.

11. Place of performance¹ and place of jurisdiction²

(1) Dietzenbach is the place of delivery and performance. The legal relationships between the seller and the buyer are exclusively orientated to German law.

(2) The place of jurisdiction is Offenbach am Main or, according to choice, the seller´s head office or the customer´s branch office, insofar as the customer is a businessman. In addition, the legal place of jurisdiction also applies in the case of lawsuits involving cheques or bills of exchange.

¹ domicilium executandi
² domicilium disputandi

12. Partial inoperativeness

(1) If one of the aforementioned conditions or part of it is inoperative or becomes so, then the operativeness of the remaining conditions will not be affected by that.

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